Potential challenge to Supreme Court ruling in Cheshire West case averted as Court of Appeal endorses settlement in case of disabled woman deprived of liberty

A potential challenge to the Supreme Court’s ruling on deprivation of liberty in the landmark “Cheshire West” case has been averted, bringing greater clarity for social workers in interpreting the law.

The acid test

In that case, the Supreme Court famously laid down an “acid test” – based on previous case law – for determining a deprivation of liberty in care for someone lacking the capacity to consent. This specified that a person:

should be under continuous supervision and control; and

not free to leave the place they were in; and

their confinement should be the responsibility of the state.

The Supreme Court also made clear that such a deprivation of liberty would apply in a domestic setting, as well as in health or social care placements.

What Court of Protection judge ruled

The KW case concerned a 52-year-old, physically disabled woman with mental health and cognitive problems and epilepsy, known as “Katherine”, receiving round-the-clock care at home.

Both Katherine, through a litigation friend, and Rochdale Council, which co-funds her care with the local clinical commissioning group, contended that this amounted to a deprivation of liberty on the basis of the Supreme Court’s judgement, which required authorsiation by the Court of Protection.

However, in December, Mr Justice Mostyn ruled that this was not a deprivation of liberty because the “acid test” was not met. Katherine’s “freedom to leave” her own home was not being constrained because she did not have the “physical or mental ability to exercise that freedom” as her mobility was so poor that she may soon become house-bound.

Mr Justice Mostyn stressed he was bound by the Supreme Court judgement and compliant with it, but that “the matter should be reconsidered by the Supreme Court”. Following his judgement, Katherine’s counsel mounted an appeal, which the judge granted.

Mr Justice Mostyn said he hoped the Court of Appeal “would shortly dispose of the appeal and grant permission to appeal to the Supreme Court”.

Ruck Keene suggested that this means “that practitioners can now proceed on the basis that Mostyn J’s conclusions as to what “freedom to leave” means can be treated with extreme caution at best, if not consigned to history entirely”.

But it added: “It is disappointing that we have no judgment to really get to grips with the reasons as to why. Some are calling for written reasons as to why the consent order was agreed, which might provide us with some of the answers. We wait to see if this will be provided.”

Council failings

The news follows two cases of serious failings by councils in relation to deprivation of liberty:

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